CHAMPALAL HIRACHAND Vs. MOHANLAL NARAYANDAS

JUDGEMENT

(1.) THIS is an appeal from an order of District Judge of Dhar refecting an application preferred by the appellants under Order 21, Rule 2, Civil P. C. for recording and certifying an adjustment of a decree under execution, said to have been arrived at between the parties.

(2.) THE material facts are that a decree was passed by the Court of the District judge of Ujjain on 24th February 1956. Thereafter the decree- holders moved the court of the District Judge of Ujjain for the issue of a precept under Section 46, civil P. C. for attachment of certain property belonging to the judgment-debtors situated within the limits of the court of the District Judge of Dhar. In pursuance of that precept, the judgment-debtors' property was attached in March 1957. On 29th March 1957 the judgment-debtors presented in the court of the District Judge of Dhar an application for recording an adjustment under Order 21, Rule 2, Civil P. C. This application was rejected on the ground that the decree passed by the Court of the District Judge of Ujjain had not been transferred to the Court of the District judge of Dhar for execution and that the application under Order 21, Rule 2, Civil p? C. should have been made to the Court of the District Judge of Ujjain. Subsequently the decree was transferred for execution to the Court of the District judge of Dhar and was received in that court on 4th June 1957. The decree-holders then made an application under Order 21, Rule 11, Civil P. C. in the Court of the District Judge of Dhar for execution of the decree. The judgment-debtors then again submitted another application on 18th October 1957 for recording an adjustment under Order 21, Rule 2, Civil P. C. This application was rejected on the ground that it was made by the judgment-debtors ninety days after the date of the adjustment and was barred by time. The judgment-debtors have now preferred this appeal.

(3.) MR. Sundecha, learned counsel for the appellants, contended that the judgment-debtors' first application made on 29th March 1957 in the court of the District judge of Dhar for recording the adjustment was to the proper court as the court to which a precept is issued under Section 46, Civil P. C. is a court executing the decree; and that, therefore, that application should have been entertained and not rejected as incompetent. It was not disputed that ihe second application made on 18th October 1957 after the decree had been transferred for execution to the court of the District Judge of Dhar was presented more than ninety days after the date of the adjustment. But it was argued that this application was not an independant application but only one in continuation of the former application dated 29th March 1957 for recording the adjustment under Order 21, Rule 2, Civil p. C. and could not, there-tore, be regarded as time barred.